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Sga’Nisim Sim’Augit, suing on his own behalf and on behalf of all the members of the house of Sga’Nisim v. Canada, file No. 35301, SCC (Mclachlin C.J.C., Abella and Cromwell JJ.A)

Sga’Nisim Sim’Augit (Chief Mountain), also known as James Robinson, suing on his own behalf and on behalf of all the members of the House of Sga’Nisim v. Canada (Attorney General), File No. 35301, Supreme Court of Canada (McLachlin C.J.C., Abella and Cromwell JJ.A), 22 August 2013

The decision of the trial judge (2011 BCSC 1394) was summarized in our e-Newsletter of 6 March 2012, and the dismissal of the appeal by the B.C. Court of Appeal in February 2013 (2013 BCCA 49) was noted in our e-Newsletter of 15 July 2013.

The Supreme Court of Canada dismissed a leave application filed by the plaintiffs in the Chief Mountain case, involving a constitutional challenge to the Nisga’a Final Agreement.

A summary of the case found on the SCC’s website was as follows:

Aboriginal law – Self-government – Constitutional validity of treaty – Whether Court of Appeal erred in finding transfer of legislative powers to Nisga’a government under Treaty to be valid delegation of such powers – Whether Court of Appeal erred by refusing to expressly overrule conclusion in Campbell et al. v. A.G. BC/AG Cda & Nisga’a Nation et al., 2000 BCSC 1123, that legislative powers conferred under Treaty reflect inherent Aboriginal right of self government which exists independently from legislative powers in ss. 91 and 92 of Constitution Act, 1867 – Whether Court of Appeal erred in finding it was constitutionally permissible for Parliament or provinces to delegate legislative power to create new taxes.

In 1998, the Nisga’a Tribal Council, and the respondent federal and provincial governments signed a treaty and a land claims agreement (“Treaty”) with the intention of reconciling the prior presence of the Nisga’a Nation with the assertion of sovereignty by the Crown and of establishing a new relationship between them. The agreement was ratified by the Nisga’a people and the governments. Among other things, the Treaty deals with the preservation of Nisga’a culture, language and education, land and resources and it expressly recognizes the Nisga’a Nation’s right to self-government and the authority to make laws. The applicants are members of the Nisga’a Nation. They challenged the Treaty and settlement legislation that gave it force of law on the basis that it impermissibly confers legislative and self-government powers on the Nisga’a Nation that are inconsistent with the exhaustive distribution of legislative power between the respondent governments found in ss. 91 and 92 of the Constitution Act, 1867. They also argued that any purported delegation of powers through the settlement legislation to the Nisga’a government is invalid, primarily because it is an improper abdication of legislative power. The trial judge dismissed the applicants’ claim for declaratory relief. The Court of Appeal dismissed the appeal.

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